Contents lists available atScienceDirect
Computers in Human Behavior
journal homepage:www.elsevier.com/locate/comphumbehUnfair play? Video games as exploitative monetized services: An
examination of game patents from a consumer protection perspective
Daniel L. King
a,b,∗, Paul H. Delfabbro
a, Sally M. Gainsbury
c, Michael Dreier
d, Nancy Greer
e,
Joël Billieux
f,gaSchool of Psychology, The University of Adelaide, Adelaide, SA, Australia
bCollege of Education, Psychology & Social Work, Flinders University, Adelaide, SA, Australia cBrain and Mind Centre, School of Psychology, University of Sydney, Camperdown, NSW, Australia
dOutpatient Clinic for Behavioral Addictions, Department of Psychosomatic Medicine and Psychotherapy - Medical Psychology and Medical Sociology, University Medical Center of the Johannes Gutenberg-University Mainz, Mainz, Germany
eCentral Queensland University, Melbourne, VIC, Australia
fAddictive and Compulsive Behaviours Lab, Institute for Health and Behaviour, University of Luxembourg, Esch-sur-Alzette, Luxembourg gCentre for Excessive Gambling, Lausanne University Hospitals (CHUV), Lausanne, Switzerland
A R T I C L E I N F O Keywords: Video game In-game purchasing Microtransaction Predatory monetization Consumer protection Gaming disorder A B S T R A C T
Video games as a consumer product have changed significantly with the advent of in-game purchasing systems (e.g., microtransactions, ‘loot boxes’). This review examines consumer protections related to in-game purchasing by anticipating some of the potential design strategies that might contribute to higher risk consumer behavior. Attention was directed towards the analysis of patents for potential in-game purchasing systems, with 13 identified on Google Patents. The design features were analysed in relation to the consumer rights and guarantees described in the terms of use agreements of the patent assignees. The analysis revealed that some in-game purchasing systems could be characterized as unfair or exploitative. These systems describe tactics that capitalize on informational advantages (e.g., behavioral tracking) and data manipulation (e.g., price manipulation) to optimize offers to incentivize continuous spending, while offering limited or no guarantees or protections (e.g., refund entitlement), with the potential to exploit vulnerable players (e.g., adolescents, problematic gamers). These findings are critically discussed in relation to behavioral economics, addiction psychology, and the clinical conceptualization of gaming disorder. Appropriate policy and consumer protection measures, psychologically informed interventions, and ethical game design guidelines are needed in order to protect the interests and wellbeing of consumers.
1. Introduction
Video games as a consumer product have changed significantly in recent years, with the monumental rise of ‘games as a service’. Games as a service refer to a broad class of online games which provides in-game content on a continuing revenue model (Lehdonvirta, 2009). Examples of such games include the extremely popular online ‘battle royale’ genre (e.g., Fortnite), online subscription-based games such as massively multiplayer online (MMO) games (e.g., World of Warcraft), and free-to-play game apps on smartphones and tablets (e.g., Clash of Clans). Games as a service are designed to encourage users to make ‘in-game pur-chases’ or ‘microtransactions’, which involves spending money, usually in small amounts (e.g., between $1 and $5), to access (or have the possibility of accessing) virtual items or currency within the game. In
2017, the publisher Activision Blizzard declared a $4 billion revenue from microtransactions (Activision Blizzard, 2017). Many other major ‘AAA’ game companies, including Ubisoft and Electronic Arts, have been very active in this area by incorporating microtransactions into their franchise game titles, such as Madden, FIFA, Star Wars: Battlefront and
Assassin's Creed (Drummond & Sauer, 2018). The basic design and
im-plementation of in-game purchasing options, particularly their rapid pace, repeatability, and inherent randomness in some formats, has in-vited some comparisons to gambling products, particularly electronic gaming machines (King & Delfabbro, 2018). In-game purchasing sys-tems have also generated a great deal of debate on the need for gaming-specific regulation and consumer protection across many jurisdictions (Griffiths, 2018; Environment and Communications References Committee, 2018; King, 2018; King & Delfabbro, 2019; Király et al.,
https://doi.org/10.1016/j.chb.2019.07.017
Received 25 March 2019; Received in revised form 9 July 2019; Accepted 15 July 2019
∗Corresponding author. School of Psychology, Level 5, Hughes Building, The University of Adelaide, Adelaide, SA 5005, Australia. E-mail address:[email protected](D.L. King).
Available online 16 July 2019
0747-5632/ © 2019 The Authors. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/BY-NC-ND/4.0/).
2018; UK Gambling Commission, 2017).
Despite these concerns, a major challenge for online gaming reg-ulation and consumer protection measures has continued to be the lack of consensus or clarity regarding the legal status of certain types of in-game purchases (Griffiths, 2018; King & Delfabbro, 2019a, 2019b; Teichert, Gainsbury, & Mühlbach, 2017). In some jurisdictions, such as Belgium and the Netherlands, regulators and politicians have made recommendations that some in-game purchases, such as the purchase of randomly determined items via ‘loot box’ mechanics, should be con-sidered a form of gambling (BBC News, 2018). However, the situation in other countries remains less clear and in a state of development. A common point of contention is whether in-game purchases involve items of value that can be won (and lost) by the player, as is the case in gambling. In legal proceedings in the United States where claimants have argued that they experienced harms resulting from ‘financial losses’ due to microtransactions, the assumption that the gaming ac-tivity involved ‘gambling’ has consistently been rejected, notwith-standing a recent Washington case involving the social casino game series Big Fish Casino (Gatto & Patrick, 2018; Solana, 2018). Recently, in the US, senator Josh Hawley has proposed a bill that would ban the inclusion of ‘pay-to-win’ microtransactions and loot boxes in games oriented to child users (Kelly and May, 2019). In other jurisdictions, there have been measures introduced to increase the transparency of in-game purchases to assist consumers in evaluating the value proposition of these transactions. For example, the Chinese government passed legislation in 2016 that required game developers to disclose the odds of receiving certain items from loot boxes to assist players to make more informed decisions (Grayson, 2017). Finally, some segments of the gaming industry are considering self-regulation measures for certain types of in-game purchases. In 2018, Jen Maclean, the Executive Di-rector of the International Game Developers Association (IGDA) posted a ‘call to action’ that urged developers to immediately implement sev-eral self-regulation measures, including age-appropriate marketing, consumer advice on odds for random in-game rewards, and parental controls (Maclean, 2018).
Consumer protection issues related specifically to in-game pur-chases (i.e., microtransactions) have generally not been examined in the courts. However, in Australia, one particular high-profile consumer protection case involving online game software purchases was Australian Competition and Consumer Commission (ACCC) vs Valve Corporation which was filed in 2014 and resolved in 2018. In its final ruling, the Federal Court found that the company Valve Corporation (Valve), through its online game distribution platform Steam and its Steam website, had engaged in misleading or deceptive conduct and made false or misleading representations to Australian consumers about the consumer guarantees under Australian consumer law. Although not specifically relating to micro-transactions (but still relevant to digital goods), the Court reached the important finding that Valve could be held liable for false or misleading representations to consumers. In the terms and conditions contained in its Steam subscriber agreement and refund policy: (1) consumers were not entitled to a refund for digitally downloaded games purchased from Valve in any circumstances; (2) Valve had excluded statutory guarantees and/or warranties that goods would be of acceptable quality; and (3) Valve had restricted or modified statutory guarantees and/or warranties of acceptable quality (ACCC, 2016). Valve was ordered to pay $3 million in penalties. According to ACCC chairman, Rod Sims, this ruling set a precedent that overseas-based companies that sell digital goods to Australians must abide by Australian law, and these goods come with automatic consumer guar-antees that they are of acceptable quality and fit for the purpose for which they were sold, even if the business is based overseas (ACCC, 2017).
The case of ACCC vs Valve has provided a precedent that has brought online games and in-game purchases under the jurisdiction of consumer law. For regulators, this has extended the potential avenues for action beyond the need to find gaming to be form of illegal gambling
(often a difficult undertaking, despite the outcomes in Belgium), and as another product or service that could be seen to contravene certain obligations legally entitled to the consumer. Following this line of reasoning,King and Delfabbro (2018)proposed that some in-gaming purchasing options could be considered ‘predatory’ because certain attributes of the gaming product bore similarities to gambling products, even though they may not have met the strict legal definition. Such predatory monetization schemes were defined as “in-game purchasing systems that disguise or withhold the true long-term cost of the activity until players are already financially and psychologically committed” (p.1967). King and Delfabbro noted that some schemes may employ tactics that make in-game transactions more likely to be misunderstood or vexing for some users. In particular, they drew attention to the large number of younger users who commonly make in-game purchases, as evidenced by recent research by the eSafety Commssioner which re-ported that 34% of young people aged 8–17 years had made in-game purchases in the previous 12-month period (Office of the eSafety Commissioner, 2018).
There is also a growing discourse on player exploitation in relation to video game monetization among members of the gaming community, including players, journalists, and the developers themselves. These groups are perhaps more aware than many outside observers that the gaming industry's use of microtransaction systems is becoming more sophisticated and generating massive revenue. Critical evaluation of these developments has emerged from discussions of the design tactics within so-called ‘casual’ games (typically found on smartphones and tablet devices), where games are made freely available to players but there are options to make unlimited, small purchases. However, be-cause game companies often seek to keep their intellectual property confidential, there are very few objective and transparent or ‘complete’ accounts on the precise nature of the in-game spending systems in these games. As an example of typical analysis in this discourse, some players may share their experiences based on spending a certain amount of money in these games, which provides a crude indication of in-game probabilities, but this provides only limited information about the ac-tual game's mechanics. Nevertheless, some useful information about how these games work may, on occasion, be disclosed by game devel-opers. One such case, in 2015, involved an anonymous game producer for a ‘free-to-play’ game company who disclosed that their games em-ployed various sales and manipulation tactics to encourage certain players to spend more money in their game. These strategies involved, for example, searching the company's player metrics to identify highly active players and then developing monetized in-game content tailored and offered to these players. In-game content was personalised based on these players' unique interests and preferences (e.g., game items that match the colour of their favourite sports team), which involved using information gathered from players' linked social network pages (e.g., Facebook page) (Hodapp, 2015).
2015; Gainsbury, Russell, King, Delfabbro, & Hing, 2016a; Gainsbury, King, Russell, Hing, & Delfabbro, 2017; Dussault et al., 2017; Kim, Wohl, Gupta, & Derevensky, 2017; Hayer, Kalke, Meyer, & Brosowski, 2018; Jacques et al., 2016; Teichert et al., 2017; Wohl, Salmon, Hollingshead, & Kim, 2017), including the use of monetized game content to drive activities such as gambling on esports and games of chance using ‘skins’ (i.e., monetized cosmetic in-game items; see Hardenstein, 2017; Holden & Ehrlich, 2017; Macey & Hamari, 2018a, 2018b; UK Gambling Commission, 2017).
To date, there has been very limited discussion of how monetized gaming and in-game purchases may be implicated within the phe-nomenon of problematic gaming and gaming disorder. The prevailing view of video games within the literature on problematic gaming ap-pears to be that these activities are primarily governed by skill and strategy, which is clearly not the case for many new and emerging forms of monetized games. There has been a lack of analysis of how monetized games are structured to elicit in-game purchases, with extant papers on this topic tending to focus on their potential similarities to electronic forms of gambling. This literature has thus overlooked the unique properties of monetized games as an entertainment product that has evolved its own strategies at the design level, particularly the use of systems that may exploit the inequalities in information between pur-chaser and provider (King & Delfabbro, 2018). At the same time, there has been limited industry acknowledgement of its responsibilities concerning harms associated with gaming products (King & Gaming Industry Response Consortium, 2018), despite growing anecdotal evi-dence of some users spending thousands of dollars on microtransactions (Gach, 2017) and strong support and evidence for gaming disorder as an official diagnosis in clinical nomenclature (King et al., 2018; Mihara & Higuchi, 2017; Rumpf et al., 2018; Saunders et al., 2017). The aim of this review was to contribute to further critical discussions at the nexus of monetized gaming, consumer protection, behavioral economics, and the psychology of problematic gaming behaviors.
1.1. The present review
The primary aim of this review was to examine video game mon-etization schemes from an Australian consumer protection perspective and for this discussion to form the basis of further psychological ana-lysis of in-game purchasing conceptualized as a risky behavior. Following the recent case law example of ACCC vs Valve, this review was designed to evaluate design features for in-game purchasing sys-tems using an ACCC consumer protection framework, with a focus on basic consumer rights and guarantees for these products. Attention was directed, in particular, to utility patents for microtransactions and their associated terms of use. Such patents were selected because the func-tional description of patents discloses the key design attributes and explains the developer's intended purpose and range of implementa-tions. In our view, such analysis has distinct advantages over simply observing monetized games in action, for example, which may be fraught with error and lack the ability to inspect underlying design features (e.g., programming logic). Game patent analysis may provide insights into how consumer behaviors may be impacted by games that would otherwise require special access to game intellectual property, design documents, or other inside information on how these systems work. The second aim of this review was to more broadly consider the psychological and clinical implications of the reviewed game design features for different types of consumers. A focus of this analysis was how these features might affect gaming motivations and behaviors among vulnerable users, particularly individuals who have become problematically involved in games and may be more inclined to over-spend on gaming activities.
2. Methods 2.1. Review protocol
This review was designed to examine consumer protection issues pertinent to in-game monetization features (e.g., microtransactions, such as ‘loot boxes’), with a focus on in-game purchasing systems that employ selling tactics that incentivize repeat in-game purchases. The scope of the review included the legal terms of service associated with in-game goods and services (e.g., virtual items and currency) insofar as these documents pertain to conditions of sale for these purchases and associated consumer rights and guarantees. Although a systematic ap-proach was taken to identify utility patents, it should be noted that this review was not intended to be a comprehensive analysis of all such game systems and offerings, and readers should be aware that many game-related intellectual properties are not patented in order to avoid their public disclosure. As a note on terminology: this review refers broadly to game design which includes game structural properties (i.e., mechanics and aesthetics); however, the term ‘utility’ is used when referring specifically to legal patents which refer to game mechanics because ‘design’ in patents refers to appearance or ornamental struc-ture. This review thus constitutes a selective evaluation of some of the publicly disclosed technical capabilities and research and development (R&D) priorities within some segments of the gaming industry. In other words, this review provides an overview of some of the capabilities of certain monetized video games rather than being representative of all such gaming products on the whole. This review follows, and is distinct from, a previous narrative review on social responsibility measures for monetized games based on the literature on electronic gambling ma-chines (King & Delfabbro, 2019b).
To identify game utility patents, a search of the Google Patents da-tabase was conducted. Google Patents was used because this dada-tabase includes over 87 million patents, including full text from 17 patent offices including the United States Patent and Trademark Office (USPTO), European Patent Office (EPO), China's National Intellectual Property Administration (CNIPA), Japan Patent Office (JPO), and Korean Intellectual Property Office (KIPO). The patent database was searched using the following keywords and logic: ‘microtransaction’ AND ‘game’. This broad search was designed to identify in-game sys-tems or features that related to in-game purchases. A total of 429 pa-tents were identified. The titles of all results were screened for re-levance to consumer interaction with monetization schemes, which excluded 401 results. Excluded patents referred only to technical characteristics of the payment systems (e.g., e-commerce systems, on-line exchange of information and user authentication, security mea-sures for online payment) and not to the desired human interaction with these systems. The abstracts (i.e., ‘functional description’) of the remaining patents were checked for relevance to in-game purchases. Fifteen patents were excluded due to high similarity to other patents (e.g., patent US9799059B1 referred to a system that ‘adjusts the user cost associated with virtual purchasable items’ which had some simi-larities to the reviewed patents US9808708B1 and US9138639B1; see Table 1). A total of 13 patents were retained for analysis.
financial reports, excluding company revenues from hardware sales and other non-game sales. Two of the top companies (Activision, NetEase) had already been identified in the first part of the review. In addition to these top companies, the companies Kabam and Aftershock were added from the patent assignee list. A total of 12 terms of use documents were summarized according to their conditions related to age restrictions, refund entitlement, warranty disclaimer, value disclosure (i.e., the status of virtual goods/currency) and ownership or possession of the game property including in-game goods. The terms of use documents were retrieved from each company's official website.
2.2. Utility patents evaluation
All 13 patents were summarized according to the following char-acteristics: (1) registration details (i.e., identification code); (2) assignee (i.e., company ownership); (3) title of patent (i.e., name of the patent); (4) description of the feature (i.e., summary of the functional description, extracted from the patent document); and (5) player perspective (i.e., the player's experience of the system); and (6) sales methods (i.e., the tactics used to elicit repeat player spending). It should be noted that the patent evaluation was not intended to be comprehensive, but selective of specific systems and types of implementations related to the focus of this review. With regard to (4), each patent document was read and all references to ‘spend∗‘, ‘money’, ‘purchas∗‘, ‘microtransaction’, and ‘currency’ were identified. The descriptions of the patent were extracted as direct quotes from the document, with only slight modifications in some cases (i.e., removal of descriptions of additional systems that support the patent, or illustrative examples of different implementa-tions) for the sake of parsimony and word count. With respect to (5), the patent description was reframed to explain the player behavior, based on the description of the patent. For validity purposes, the first author provided the original patent statement, the patent description in the table (if different in any way), and the player perspective summary to two co-authors for comparison. Three of the authors (DLK, PHD, and JB) were responsible for evaluating the patents and agreed on the summaries of each patent inTable 1.
Sales methods included (1) exploitation of player data (i.e., the use of individual and/or player population data to optimize the type and scheduling of purchasing offers or discounts for each player, such that important conditions of the product [e.g., price, availability]: are
manipulated or determined by factors that take advantage of personal information [e.g., available funds] rather than basic supply or demand factors); (2) limited disclosure of the product (i.e., referring broadly to non-disclosure or misrepresentation of important conditions of the purchase, including the long term value or utility of a purchased item, and/or that product features are affected by player analytics); (3) adaptive solicitation (i.e., purchasing offers that are triggered by certain player behaviors and other analytics); (5) limited possession (i.e., granting a player temporary possession of an item to encourage urgent use and/or additional purchasing); and (6) price and/or currency ma-nipulation (i.e., altering the prices of items or the value of currency based on player analytics and/or other non-player factors to encourage purchasing).
2.3. Terms of use evaluation
Analysis of the terms of use documents sought to identify product information and consumer protection measures related specifically to in-game purchasing. As noted in Section2.1, this evaluation was con-cerned with: (1) consumer protection issues, such as company state-ments on age restrictions, informed consent for product use, end user responsibility and/or liability for in-game purchases, and refund and compensation entitlements; and (2) product information and guaran-tees, such as game product warranty and disclaimers, product value disclosure (e.g., monetary equivalent or other value of the product), and product ownership and licencing agreements.
2.4. Consumer protection issues related to in-game purchases
The final part of this review examined the game patents and terms of use in relation to Australian consumer protection principles and consumer rights and guarantees that have been outlined by the Australian Competition and Consumer Commission (ACCC) (https:// www.accc.gov.au). The aim was to compare in-game product attributes and the basic legal conditions of in-game purchases with principles of consumer protection law. This was undertaken with the caveat that virtual items differ from tangible goods and services, with the principal distinction being that virtual goods are claimed by game companies to be licenced temporarily to users as entertainment only. Seven consumer protection areas were considered, including: tests of acceptable quality, Table 3
Summary of consumer protection issues related to in-game purchases and their terms of use.
Consumer protection measuresa In-game purchases and virtual assets
Test of acceptable quality: Products must be of acceptable quality, that is: safe, lasting,
with no faults; look acceptable; do all the things someone would normally expect them to do.
In-game items may not be lasting (e.g., expire or become unavailable after a period of time); items may have qualities that are difficult to evaluate until purchased; and may not meet the player's expectations of utility and value.
Refund entitlement: Consumers can ask for a replacement or refund if the problem with
the product is ‘major’. It is against the law for businesses to inform consumers or display signs stating that they do not give refunds under any circumstances.
Purchases of in-game items are non-refundable according to companies' terms of use; Virtual goods are considered to have ‘no value’ and therefore no losses can be associated with this good; Obtaining a refund may prevent use of the game product.
Major problem with a product/service: A product or good has a major problem when: it
has a problem that would have stopped someone from buying it if they had known about it; it is significantly different from the sample or description.
In-game items and currency may have features and/or drawbacks (e.g., limited use or value to the player) that a reasonable consumer would consider a ‘major problem’; offers may not provide a complete or accurate description of goods.
Product/service guarantees: Products must: come with full title and ownership; not
carry any hidden debts or extra charges; come with undisturbed possession, so no one has a right to take the goods away or prevent you from using them.
In-game items are not ‘owned’ by the player; in-game items may have hidden charges (e.g., costs of ‘maintaining’ the item in the player's inventory); items may be removed or altered at the developer's discretion at any time.
Exceptions to guarantees: Consumer guarantees do not apply if you knew of or were
made aware of the faults before you bought the product. Consumers are informed by the terms of use that items are ‘as is’ and there are noguarantees and no compensation for losses associated with these goods.
False/misleading impressions of the product: Businesses are not allowed to make
statements that are incorrect or likely to create a false impression. If the overall impression left by a business's advertisement, promotion, quotation, statement or other representation is misleading —such as to the price, value or the quality of any goods and services—then the behavior is likely to breach the law.
Terms of use state that players do not own or have any property interest in virtual assets; Prices of in-game items may be determined by factors that are not disclosed to the player (e.g., an algorithm that takes into account the player's available funds and cost sensitivity to certain items); The availability, value, and quality of goods, including those in the user's inventory, may be changed at any time.
Claiming a remedy: Consumer can claim a remedy directly from the manufacturer or
importer if the goods do not meet consumer guarantees, e.g., unacceptable quality; does not match the description.
Consumers have limited options to claim a remedy. The terms of use state that in-game purchases are not refundable and that users waive their right to pursue some legal options (e.g., file a class action).
refund entitlement, resolving a major problem with a product, exceptions to a guarantee, product/service guarantees, false or misleading impressions of a
product, and claiming a remedy.Table 3provides the definitions for each
of these consumer protection areas. 3. Results
3.1. Patents for in-game monetization schemes
Table 1presents a summary of the 13 patents that refer to systems and methods that encourage repeat in-game purchases. Most patents (n = 12) described sophisticated systems that involve the collection of player data and analytics to present individually tailored offers or purchasing opportunities to the player. The systems are designed to optimize the nature and scheduling of purchasing offers to increase the probability that the offer will be desirable to the player. In some pa-tented systems, this may be achieved by accounting for certain metrics that affect the likelihood of purchasing behavior, such as product fea-tures (e.g., price, function, or contextual value) in combination with data on player characteristics (e.g., purchasing tendencies, available funds, item preferences, inventory). In this way, the patent descriptions refer to systems that may be considered a form of machine learning (Alpaydin, 2014), or the ability of systems to ‘learn’ from player's ac-tions, in this case to improve the game's capability to make desirable offers to players. This learning process was evident, for example, in patent CN106557938A which refers to a system that classifies each user according to a specific payment level based on population purchasing data and other analytics. Those players who have not yet made pur-chases are presented with offers known to be commonly accepted by other players with similar profile characteristics. Similarly, the patent US9138639B1 describes a system that adjusts the price of virtual items for each user, with that price determined by user-based metrics that affect price sensitivity, such as the user's level of experience and pro-gress in the game.
Further examination of the patents indicated that player data was used to influence other sales tactics to encourage in-game purchases, including: (1) solicitations, or purchasing offers that appear onscreen at calculated intervals or due to certain triggers, which may: (a) interrupt play, employ ‘pressuring’ tactics (e.g., ‘limited time offer’ with a countdown timer), and/or (b) be embedded or implemented within the broader architecture of the game world, such as being positioned in a central, unavoidable location in the game, in ways that gate-keep or accompany player access to non-monetized content; and (2) limited disclosure of the product, referring to: (a) limited disclosure or non-dis-closure of the fact that player data is a major determinant of pur-chasing-related in-game variables and situations, including the con-textual value of virtual goods or currency or the probability of receiving a reward in a ‘lucky dip’ situation, and (b) giving a misleading im-pression or an incomplete description of the effectiveness, availability, and/or rarity of an in-game product.
A noteworthy feature across patents was that the game system is described as being calibrated to present in-game offers based on two main sources of information: (1) individual player metrics; and (2) population metrics. In the case of an individual having a particular behavioral repertoire (e.g., an identified regular pattern of play, such as daily use for 2 h) but does not spend money on microtransactions, the system may draw upon its population data (i.e., other players with comparable characteristics) to determine the possible price sensitivity of this non-spending player based on otherwise comparable players who do spend money. The system is therefore capable of knowing a lot about the player's actions to the extent that it generates a predictive model of this individual in absolute terms. At the same time, the system may describe players in relative terms, by identifying the precise be-havioral differences between individuals and the wider player popula-tion (i.e., how some individuals may deviate from any given norm). It may be presumed, based on population statistics, that the system's
ability to make accurate predictions about the game is strengthened as the population grows.
3.2. Terms of use for in-game purchases
Table 2presents a summary of the terms of use for in-game pur-chases to provide legal context for the 13 utility patents. Most terms of use (n = 8) specified that products were for use by users at least 13 years of age, and these documents also specified that an underage user's parent or legal guardian consents to in-game purchases being made by the user and is bound by the terms of the agreement (i.e., parents as-sume responsibility for their actions). All documents state that sales are final and that there are no refund entitlements for in-game purchases, with the exception of erroneous charges which may be claimed under stringent conditions (e.g., a claim is made within a short time-frame, e.g., 48 h). Relatedly, all documents state that virtual currency has ‘no value’ and therefore there is no compensation for loss of this in-game content. These documents also explain that users do not technically ‘own’ or possess in-game goods, but instead purchase a limited licence to use the product that can be revoked at any time without notice at the discretion of the company.
3.3. In-game purchases and consumer protection
Table 3provides a summary of consumer protection issues related to in-game purchases. This consumer protection framework was pro-vided by the Australian Competition and Consumer Commission (ACCC). An important issue that arises across many jurisdictions, when evaluating the rights of consumers who make in-game purchases, is determining whether a virtual good should be considered to have equivalent status to tangible real-world products or services. In Aus-tralia, the ACCC and the Australian Communications and Media Au-thority (ACMA; www.acma.gov.au) state that purchases of virtual goods must comply with Australian consumer laws and regulations, but these authorities also recognize that exercising consumer rights, such as seeking refunds, can often be difficult and time-consuming. Available consumer advice on in-game purchases is predominantly relevant only to situations that involve ‘unauthorized’ (e.g., illegal, unwanted) pur-chases of such goods (e.g., when a child makes a purchase using a parent's credit card without the parent's knowledge), rather than stan-dard transactions where the consumer had intended to make the pur-chase.
The present review shows that there may be significant challenges and complexities in evaluating virtual goods against some consumer protection measures. For example, the test of acceptable quality may be difficult to apply to a virtual good without any recognized standard of quality for virtual items. Similarly, the test of whether a virtual good has a ‘major problem’ may be difficult to evaluate in the absence of a product description or statement that might inform a reasonable con-sumer's expectations of that product. As noted in Section3.2, the terms of use for in-game purchases refer to in-game transactions as the pur-chase of a limited, non-exclusive licence for an entertainment property of no value that may be revoked at any time. Each company may contend, therefore, that it has fulfilled its legal responsibility to inform the consumer that in-game purchases are valueless and that consumers have no guarantees nor should they have any expectations concerning quality, functionality, or appearance of purchased in-game goods. Such statements indicate that consumers may be able to seek a remedy for the purchase itself (i.e., financial transaction), on the grounds that the consumer did not authorize the payment, but it may be difficult to seek a remedy on the basis of the quality or performance of the virtual good (e.g., the acceptability of the virtual item).
4. Discussion
developed unique technical systems designed to encourage repeat in-game purchases in ways that could be characterized as potentially un-fair or exploitative. An examination of 13 patents revealed that an important feature of some in-game purchasing systems, which distin-guishes these gaming activities from standard video games and elec-tronic gambling machines, for example, is the ability to modify the play experience based on individual player and/or population behavioral data. Most patents described sophisticated systems that involve the collection of player data and analytics to present individually tailored offers or purchasing opportunities. Behavioral data are used to optimize the type and delivery of purchasing offers in order to incentivize players to make continuous in-game purchases within the context of a game service that can be continually updated and thus has uncertain and ever-changing long-term costs. These findings demonstrate that there is an emerging class of monetized games which differ from many pre-existing games with respect to the requirement of player skill and strategy to make progress. In contrast to games where the player may become more proficient with practice, these monetized video games appear to be capable of tracking various player metrics and adjusting their design in automated ways that elicit in-game purchasing. Systems that dynamically adjust game item prices and value based on in-dividual player analytics (e.g., purchasing tendencies, available funds, item preferences, inventory), primarily implemented by developers to serve monetary goals (maximizing revenue) and which lack basic transparency to the player, may have the potential to exploit certain types of vulnerable players under certain conditions.
This review has also found that the top gaming companies' terms of use related to in-game purchases refer to these types of transactions as involving a limited, non-exclusive licence for content of no recognized monetary value, which may limit the consumer's rights and guarantees related to these purchases. This suggests that, internationally, certain monetized games or game situations may have very few consumer protections, which could pose substantial financial risks for some players and, in the case of underage players, parents and those legally responsible for their actions. These findings highlight the need for psychological and other academic disciplines that study video games to recognize the increasing importance, and indeed the centrality, of in-game purchasing behavior to certain types of gaming activities. These findings also contribute to growing discussions about protections for underage and other vulnerable users of monetized games who may be exploited financially by these games. In addition, with the official in-clusion of gaming disorder in the ICD-11 as of May 2019, it has become even more important for clinicians helping clients with problems re-lated to gaming to understand the financial elements of some games. In-game purchasing is particularly relevant to the study of problematic gaming and gaming disorder, given that purchasing may be the user's central motivation for playing; it may be engaged in repeatedly and in an uncontrolled way; and may generate significant distress and fi-nancial and interpersonal harms (Dreier et al., 2017; Paik, Cho, Chun, Jeong, & Kim, 2017).
The notion that game systems collect player data to modify or adapt the game situation to each individual user has many historical pre-cedents in video game design. It is well known, for example, that games have long employed ‘rubber-banding’ or dynamic difficulty to ensure that the game is consistently challenging irrespective of the player's skill level (e.g., a racing game where the computer opponents are matched to the player's skill level) (Hunicke, 2005). This design ap-proach aims to ensure that players regularly experience close victories and losses to build and maintain excitement (Griffiths & Nuyens, 2017; King et al., 2010; Wood, Griffiths, Chappell, & Davies, 2004). The pa-tents in this review apply this same principle of ‘rubber-banding’ to in-game purchasing by ensuring that the in-game's financial requirements are adjusted to match the players' desire and capacity to pay. In this sense, the ‘difficulty’ of a monetized game may be considered analogous to the player's cost sensitivity, or the willingness of the player to make con-tinued in-game purchases. If an item costs too much, then the player
may feel frustrated; if an item costs too little, then the player may lose interest in the game (see also ‘flow’;Csikszentmihalyi, 1997). In a pure skill-based game, players may often identify methods of gaining an advantage over the system, by honing their skills or developing new strategies, such as memorizing the game's challenges and obstacles (e.g., learning where race opponents tend to be positioned on the track, finding optimal routes to objectives, and so on) (Salen & Zimmerman, 2004). However, in a monetized game, there may be very few, if any, other options available to the player that will bypass or affect financial obstacles (e.g., price of items) and for this reason these types of systems are often referred to as ‘paywalls’ (e.g., a racing game with the re-quirement of spending real money on virtual fuel to drive the car). Thus, players of monetized games cannot ‘strategize’ to win but instead must decide between making in-game purchases or not playing at all (or potentially, playing without paying but doing so with significantly di-minished in-game capabilities that generate regular feelings of frus-tration). This review shows there is an emerging technical sophistica-tion to these purchasing systems that aims to reduce the player's uncertainty or reluctance regarding purchasing decisions.
The concept of information asymmetry (Aboody & Lev, 2000) may be usefully applied to understand players' uncertainty across these types of purchasing decisions and how some transactions may be particularly exploitative of this uncertainty. Information asymmetry in the context of in-game purchasing refers to a relationship between the game and the player whereby the game system has significantly more information about the player than the player has (or is able to acquire) about the game. Information of relevance includes that which enables either the player or the game system to anticipate and respond to the actions of the other to achieve its goals. The goal of the player may be to win or make progress in the game, which requires information about how the game tends to work, whereas the goal of the game system may be to keep the player engaged and spending money, which requires in-formation about how the player tends to behave. It bears noting that player-game information asymmetries are commonly found in many video games, to some degree, due to the superior memory and pro-cessing capabilities of a computer system, which may inadvertently generate artificially difficult challenges, much like an opponent that knows all of the player's available strategic options before it should. Beyond this common disadvantage that arises in digital games, this review has identified game systems that appear to be intended to modify in-game variables that affect player spending in various ways that would not necessarily be apparent or detectable to the player. Further, the reviewed patents suggest that the resulting information asymmetry may not only be sustained over time but may also become more imbalanced in ways that favor the computer system. In other words, as a player invests more time in the game (i.e., demonstrating his or her preferences, choices, actions, and so on), the system becomes more capable of anticipating and responding to the player, which en-ables fine-tuning of offers to achieve optimal odds of consumer accep-tance. In this sense, the game may become more ‘difficult’ or expensive to play over time.
system may be compared to a panopticon (Bentham, 2012), or a system capable of monitoring its participants without its participants' aware-ness of being monitored at all times. Unlike a standard panopticon, however, each player's gaming experience may be modified to such an extent (e.g., unique game offerings, different difficulty, different events triggered by in-game actions) that it may be difficult to share and synthesize individual datum to form a coherent whole. In other words, whereas in traditional online games players may collectively overcome a fixed in-game challenge (e.g., a difficult boss or level) by sharing the results of their trialled tactics until an optimal strategy is devised, in-dividual players of monetized games that employ the above mentioned systems may be less able to rely on the ‘wisdom of the crowd’ due an information asymmetry that compartmentalises the player base and selectively adjusts its experiences to the extent that it cannot easily aggregate its observations.
While some gaming activities have been compared to gambling, it is noteworthy that the learning capabilities of the reviewed monetization schemes appear to be dissimilar to an electronic gambling machine (EGM), where each ‘spin’ (i.e., game) is wholly independent of the previous spin's outcome and other factors such as the identity of the player who pressed the button. An EGM does not ‘learn’ from the player and must adhere to certain regulatory standards that apply regardless of who is playing, such as fixed long-term payout or ‘return to player’ (RTP), although it bears noting that some so-called ‘skill-based EGMs’ may operate differently (see Hwang, 2017; Lapetina, 2019; Young, 2018). Thus, while a gambler may erroneously believe that he or she can accurately predict randomly determined events (e.g., wins and losses), the gamer may erroneously believe that offers in the monetized game were simply fortuitous (‘lucky’) rather than determined by the player's past in-game actions. Another possibility is that some players may develop a special relationship with the game (i.e., a stable pre-ference for the game over all others) on the belief that the game seems to understand and anticipates the player's needs (see Allison, von Wahlde, Shockley, & Gabbard, 2006; Beard & Wickham, 2016; King & Delfabbro, 2014).
Terms of use documents provide an important legal context for consumer protection issues related to in-game purchasing. These documents state that purchased items are not ‘owned’ by the user. Rather, game items are considered licensed entertainment with in-definite ‘as is’ properties. The user pays the provider for a limited, non-exclusive licence to participate in the game and the purchase of virtual items is part of this limited experience. Accordingly, a video game may include an ‘inventory’ of ‘collected’ items that can be ‘used’ or ‘equipped’ but the internal language of the game and its terms of use avoid the term ‘own’ or ‘ownership’ in relation to the consumer. A video game differs therefore from gambling activities with respect to the purchase of in-game currency. Whereas gamblers are entitled to ‘cash out’ their chips at any time, a gamer cannot obtain a refund on virtual currency because: (a) the currency has no recognized monetary value, and (b) the transaction was considered final at the time of purchase. This may restrict a player's available options to seek a remedy for a perceived fault that arises in the game that affects purchased currency. In addition, in some video games, there may be very limited quantifi-able information about the specific effect or benefit of purchased items, or what exactly the player will receive from a given transaction. For example, some game developers may refer to some in-game purchases as a ‘mystery prize’ without displaying the odds of receiving a prize, and the odds may not be fixed but adjusted according to factors such as the user's payment history (see patent WO201579450A1). Applying stan-dard consumer protection measures to evaluate the fairness of such purchases, such as the test of acceptable quality (i.e., meeting the reasonable expectation of utility and value), presents challenges for consumers when the developer provides very limited disclosure of the product (e.g., a ‘mystery’ item; see US8920243B1) and states that purchases have no associated ownership or monetary value.
This review's observations of in-game purchasing systems suggest
that, in some situations, a player who makes in-game purchases often does so at his or her own risk, with limited or no guarantees that this transaction will yield the desired outcome. These findings have im-plications for the study of problematic gamers, including individuals who may have gaming disorder, who tend to demonstrate strong de-cision-making biases related to gaming (Bailey, West, & Kuffel, 2013; Decker & Gay, 2011; Ko et al., 2017; Pawlikowski & Brand, 2011; Yao et al., 2015). Current addiction models suggest that these individuals tend to have difficulties in delaying gratification and may be particu-larly vulnerable to overspending on in-game purchases, particuparticu-larly when presented with offers that provide immediate short-term gains or benefits in the game (Brand, Young, Laier, Wölfling, & Potenza, 2016; Dong & Potenza, 2014). However, current criteria for gaming disorder (e.g., Internet gaming disorder in the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition [DSM-5]) refer to the time investment in gaming activities, including the need to spend an increasing amount of time in a game, but do not refer to a user's escalating financial invest-ment. The DSM-5 adds that gaming disorder “is separate from gambling disorder because money is not at risk” (APA, 2013, p.797). With in-game purchasing becoming an increasingly central part of some video games, it may become more necessary for the DSM and other guidelines to recognize the financial aspects of problematic gaming behavior. Some of the criteria for gambling disorder in the DSM-5 that refer to ‘money’ and ‘losses’ may be applicable (e.g., borrowing money, de-ception about losses, and harm due to losses). A problematic gamer who overspends on in-game items would not be trying to recover financial losses, like a problem gambler, but may continue to spend money due to feeling trapped or to justify continued expenditure due to sunk cost effects. While the level of financial expenditure by problematic gamers may not generally rival that of problem gamblers, some players may nevertheless become quite financially involved and spend more than they can afford on in-game purchases.
The question of why some individuals are willing to spend so much money on virtual items is likely to be the subject of further psycholo-gical research (Gainsbury, King, Russell, Hing, & Delfabbro, 2016; Kim, Hollingshead, & Wohl, 2017; Molesworth & Watkins, 2016). Some ad-ditional concepts in behavioral economics may inform our under-standing of the psychology of in-game purchases that appear to have limited monetary value. For example, the endowment effect states that individuals tend to ascribe more value to things if they own them (Kahneman, Knetsch, & Thaler, 1990; Nunes & Drèze, 2006; Thaler, 1980); for example, a player who considers certain game items to be worth more than their in-game price once they are stored in the player's inventory (i.e., the item becomes ‘special’). A related concept is the status quo bias (Samuelson & Zeckhauser, 1988), which refers to the preference for doing nothing or maintaining one's current position or decision; for example, a player spending money on in-game items that ensure the player's other in-game resources or standing are ‘safe’ from an enemy or other threat. Although no player technically ‘owns’ video game content, the endowment effect suggests that players perceive some induced value for items that they have obtained and/or purchased in the game. Relatedly, the status quo bias would suggest that these players prefer to retain ownership of (and upkeep for) such items (De Sousa & Munro, 2012). It is not currently known how the endowment effect may apply differently to ‘earned’ versus ‘purchased’ virtual goods. Research could test this experimentally, following the example of re-cent studies that have found individuals who play video games to es-cape from reality prefer virtual over real-world stimuli (Deleuze et al., 2019), and that problem gamblers may be more sensitive to monetary rewards than non-monetary ones (Sescousse, Barbalat, Domenech, & Dreher, 2013). Further research on how players perceive value in games may provide treatment insights, which may assist individuals who feel unable to abandon a large inventory of virtual items to pursue alter-native activities and seek psychological recovery.
may also explain why some players escalate their financial commitment to in-game purchases. In some games, such as those which employ the systems identified in this review, players may spend an increasing amount of money that begets further spending on the game. For ex-ample, the patent US9582965B1 referred to a system that presents a series of time-sensitive offers that are designed to escalate the user's financial investment and encourage the user to spend unused virtual credit to minimize loss aversion (Tversky & Kahneman, 1991). The in-vestment of an irretrievable sum of money in pursuit of desired virtual items may be perceived by players as an investment to the extent that it will increase the likelihood of obtaining these items (Rubin & Brockner, 1975). In this connection, spending more and more money on virtual items may have a ‘sunk cost’ effect that serves to justify continued ex-penditure. Entrapment by in-game purchases may occur because the direct costs are less salient because these transactions are represented as virtual credits or credit card debt (King, Russell, Gainsbury, Delfabbro, & Hing, 2016). Sunk cost effects in online games may also operate vi-cariously (Gunia, Sivanathan, & Galinsky, 2009) via exposure to prox-imal online players who are entrapped and who make similar mala-daptive purchasing decisions. The patent US9808708B1, for example, is designed to adjust prices to ensure that the user is continually presented with offers that match his or her cost sensitivity level (i.e., the price predicted by the system to be acceptable to the player). Observing other players' making in-game purchases with favorable outcomes, such as when a system selectively matches the user with players who already possess desired items (e.g., patent US2016005270A1), may provoke counterfactual comparisons (e.g., ‘If only I had spent more … ‘) that increase or sustain the player's spending (Markman, Gavanski, Sherman, & McMullen, 1993).
The findings of this review may inform basic player education and psychoeducation content. Understanding the gaming industry and its products has become increasingly relevant because some clients will hold strong beliefs about the positive qualities of games (e.g., video games are an art form) and overlook the systems and structures that exploit the player's time and finances. Education for problematic ga-mers may share some features in common with psychoeducation for problem gambling, which involves explaining the industry's tactics and features of gambling machines that tend to contribute to false ex-pectations of turning a long-term profit (Raylu & Oei, 2010). High-lighting some similar commercial realities that guide the design of video games may help some clients to challenge maladaptive beliefs about gaming and in-game purchasing. As this review has shown, some in-game items may be designed to be artificially scarce or expensive to encourage continual playing and spending, which in turn may en-courage some players to believe they are ‘special’, for example, if they acquire certain items. Some players may benefit from information that explains how certain game systems are designed to increase the player's time commitment and financial expenditure over time. Problematic gamers may also benefit from financial literacy training to learn skills that enable more adaptive choices in in-game purchasing situations.
This review has some limitations that should be acknowledged. First, video game design is continually changing with new technological innovations and market demands. This review aimed to provide an overview of some of the capabilities of certain monetized video games but was not intended to be comprehensive in its scope. Rather, the review of patents was based on a selected sample and does not re-present all systems and methods related to game monetization. Not all systems and methods are patented, and some patented systems may not be implemented. Similarly, the functional description of a patent, such as its specific configuration in a game, may ultimately differ from its implementation. Thus, this review may only refer to the intended purpose of each design but not its final implemented form. It bears noting, however, that imitation and innovation of game software fea-tures is very common in video gaming development, and many game developers may employ the same or similar types of systems detailed in this review without being the patent assignee. Some patents were at the
preregistration stage and may not be approved (but this does not rule out that the feature is in use). The search protocol may not have identified all systems and methods that directly or indirectly encourage in-game purchasing. It may be difficult to develop a search protocol that can identify all potentially relevant patents without having inside knowledge of the research and development processes across major gaming companies. Another limitation of this review was its lack of consideration of other international jurisdictions in relation to con-sumer protection law. Different regions may differ in relation to stat-utory laws related to consumer rights (e.g., right to a refund). 4.1. Conclusions
Innovations in game design and monetization have many implica-tions for consumer protection. This review suggests that understanding the distinctive characteristics of video games may identify some fea-tures that may be considered ‘unfair’ to consumers. A deeper analysis of video games may improve the quality of our understanding of proble-matic gaming and aid efforts to reduce gaming-related harm. Some in-game purchasing systems may represent financial hazards that con-tribute to player over-commitment to gaming activities and increase risk of negative financial and psychological consequences. Gaming behaviors and problems may differ according to interactions with dif-ferent products and services. Some video games may be programmed to change as the user becomes more involved, by adapting to the actions and preferences of the user. It may be speculated that the artificial in-telligence of gaming systems, much like social media (Rader, 2014), will become even more sophisticated in the future, leading to new gaming products that are more adept at predicting and responding to player preferences and behaviors. Behavioral tracking data from a minority of highly involved gamers may be used to influence the design of certain games to make them more ‘addictive’ (i.e., time-consuming and profitable). Further, as online gaming becomes more publicly ac-cessible via streaming and esports, and players become more connected as participants and observers, there are greater opportunities for gaming systems to gather user information for design and promotional purposes. While the focus of this review was on monetized content, many of the systems in this review may be adaptable to non-monetary implementations (e.g., behavioral analytics affecting manipulation of in-game reward payout for time investment in the game). Appropriate policy and consumer protection measures, psychologically informed interventions, and ethical game design guidelines are needed in order to protect the interests and wellbeing of consumers, particularly adoles-cents who tend to be most avid players but may also be the most vul-nerable and least well-informed consumer group.
Role of funding sources
This work received financial support from a Discovery Early Career Researcher Award (DECRA) funded by the Australian Research Council (Project ID: DE170101198).
Contributors
DLK designed the review and wrote the protocol, with approval of all authors. DLK conducted literature searches and provided summaries of previous research studies. DLK wrote the first draft of the manuscript and all authors contributed to and have approved the final manuscript. Conflicts of interest
Acknowledgements None to declare.
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